Across the Line Advocacy at U.S. Ports of Entry

© Cascadia Cross-Border Law

MAKE THE BORDER GREAT AGAIN!

Great Like This?

Great Like This?

Or Maybe This?

What is the Border? Land borders (we will concentrate on Ports of

Entry) Sea ports of entry Airports (both foreign airports with

Preclearance Inspection and domestic airports with international arrivals)

...also, extended into CBP’s “100-mile” zone

4th Amendment Privacy at Air, Land, Sea Ports of

Entry 4th Amendment protects all persons against random and arbitrary stops and searches Border search exception to the 4th Amendment

Allows for routine searches of vehicles/luggage/electronics without any warrant, probable cause, and even without any individualized suspicion

These searches are still subject to the reasonableness requirement; but the mere fact that a person is presenting themselves for entry at a POE goes toward the reasonableness of the search, and a person’s expectation of privacy at the border is considered to be at its lowest.

Electronic devices: A rapidly developing area of the law. District courts, and 9th and 6th Circuits have distinguished “routine” searches requiring no individualized suspicion; from “comprehensive searches” requiring reasonable suspicion.

See, e.g.: United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013); United States v. Ramos, 190 F. Supp. 3d 992 (S.D. Cal. 2016); United States v. Kim, 103 F. Supp. 3d 32 (D.D.C. 2015); United States v. Saboonchi, 990 F.Supp.2d 536 (D.Md.2014); United States v. Stewart, 729 F.3d 517 (6th Cir. 2013); House v. Napolitano, No. CIV.A. 11-10852-DJC (D. Mass. Mar. 28, 2012); United States v. Seljan, 547 F.3d 993 (9th Cir. 2008).

These are arguments that will routinely arise after the fact; after a person’s rights may have been violated. As such, it’s important to be realistic about how things could play out practically on the ground. A traveler should decide ahead of time what they are and are not worried about the government having access to at the border; and travel accordingly.

CBP’s 100-mile zone CBP’s “100-mile” zone

8 USC 1357(a) - CBP’s authority to stop and search vehicles within “a reasonable distance from any external boundary of the United States.” 8 CFR 287.1 sets that distance at 100 air miles from any external boundary (incl. coastlines).

This covers roughly 2/3 of the U.S. population! Within this zone, CBP may establish “immigration

checkpoints,” or conduct roving patrols. In respect to roving patrols, Officers must have reasonable

suspicion of an immigration violation or a crime to pull someone over, and must have a warrant or probable cause to to search vehicles within this zone.

CBP’s 100-mile zone

Right to Representation in Immigration Matters at Ports of Entry: Statutes

INA §292 Primary statutory reference in the Act to the right to representation. “In any removal proceedings before an immigration judge and in any appeal proceedings before the attorney general from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose.”

Right to Representation in Immigration Matters at Ports of Entry: Statutes

APA: Pub. L. 79-404, §6(a), 60 Stat. 237, 5 USC § 555(b)) “A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.”

But see United States of America v. Rufino Peralta-Sanchez, No. 14-50393, 2017 WL 510454 (9th Cir. Feb. 7, 2017).

Right to Representation in Immigration Matters at

Ports of Entry: Regulations 8 CFR §[1]292.5

“… the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody.”

Right to Representation in Immigration Matters at

Ports of Entry: Instructions Inspectors Field Manual § 2.9

“No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney—unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action. A more comprehensive treatment of this topic is contained in the Adjudicator’s Field Manual, Chapter 12, and 8 CFR 292.5(b).”

Right to Representation in Immigration Matters at Ports of Entry: Instructions

Adjudicator’s Field Manual § 12.1 – in relevant part:

“An alien does not have a right to representation during primary or secondary inspection when he or she is seeking admission to the United States. In all other matters, you should allow an alien to seek counsel to the extent that doing so does not hinder or unduly delay the adjudicative process.”

Right to Representation in Immigration Matters at Ports of Entry: Case Law

Not a great deal of case law regarding right to representation in primary and secondary inspection.

Gonzaga-Ortega v. Holder, 694 F.3d 1069 (9th Cir. 2012), amended and superseded by Gonzaga-Ortega v. Holder, 736 F.3d 795 (9th Cir. 2013) (concluding that 8 C.F.R. § 292.5(b) did not entitle him to counsel during primary or secondary inspection because Mr. Gonzaga Ortega was properly deemed an “applicant for admission” pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii)).

In the context of expedited removal:

AILA v. RENO, 18 F.Supp.2d 38 (D.D.C.1998) (concluding in part that the Attorney General’s decision to ban a noncitizen’s access to counsel during the secondary inspection stage is reasonable in view of Congress’s dual purposes in providing fair procedures while creating a more expedited removal process) aff'd, 199 F.3d 1352 (D.C. Cir. 2000).

United States of America v. Rufino Peralta-Sanchez, No. 14-50393, 2017 WL 510454 (9th Cir. Feb. 7, 2017) (holding no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225).

Right to Representation in Immigration Matters at

Ports of Entry: Due Process The Fifth Amendment mandates due process in removal

hearings; entitles non-citizen to the counsel of their own choice at their own expense. See e.g. Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985) (citing United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978), United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975), 8 U.S.C. § 1362 (1982)).

Further, it is clear that “arriving aliens” do have constitutional rights in certain circumstances. See e.g. Zadvydas v. Davis, 533 U.S. 678 (2001); Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003); Guo Xi v. INS, 298 F.3d 832 (9th Cir. 2002) (holding that arriving aliens may not be detained indefinitely after being ordered removed).

Rights of LPRs Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), held that a noncitizen

who had been previously admitted as an LPR, and who was seeking to make a reentry; was not in the position of a person seeking initial admission, but was to have his status assimilated to that of a resident who had not left the United States and was, therefore, entitled to due process of law and to a hearing.

In Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C. Cir., 1958), the court declared that not only was the returning resident entitled to a hearing, but was entitled to a hearing at which the government bore the burden of proof. This was confirmed in Matter of Kane, 15 I. N. Dec. 258 (BIA 1975).

In Matter of Huang 19 I. & N. Dec. 749, 749 (BIA 1988), the BIA held that where an applicant for admission to the US has a colorable claim to returning resident status, the burden is on the government to show by clear, unequivocal, and convincing evidence that the applicant should be deprived of his or her lawful permanent resident status.

Abandonment of LPR Status

DHS says one year continuously outside of U.S., without reentry permit, is abandonment. 8 CFR 211.1. Test is subjective intent.

See e.g. Matter of Kane, 15 I. N. Dec. 258 (BIA 1975) (discussing elements such as purpose for departing, termination date, place of employment, place of actual abode);

See e.g. Matter of Quijencio, 15 I. & N. Dec. 95 (BIA 1974) (considering the location of the LPR’s ties; such as family, job or property; as an aid in determining intent).

See e.g. Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986) (holding a critical consideration to be whether the evidence demonstrates that the LPR had “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.”)

CLIENT SHOULD NOT SIGN I-407! (Record of Abandonment of Lawful Permanent Resident Status) But if they are pressured/bullied into signing the form, all is not lost. They can still request an NTA

for a hearing before an IJ on the matter. For an LPR who does want to abandon their status, there is a proper procedure for this; which

includes, but is not always limited to, executing the I-407. Matter of Wood, No. A24-653-925 (BIA, Jan. 13, 1992) (holding a returning permanent resident did

not abandon his status when he surrendered his green card and signed statements claiming to abandon his permanent residence, also citing other factors that indicated the alien intended to maintain his permanent residence). See attached materials, and 69 NO. 16 Interpreter Releases 512.

An LPR who plans on being outside the US for a significant period of time may apply for a reentry permit. In addition to serving as a valid entry document after absences of more than one year, reentry permits provide evidence as to intent. In Matter of V, 4 I. & N. Dec. 143 (BIA 1950) the BIA stated that a reentry permit provides at least prima facie evidence that the individual was lawfully admitted for permanent residence and, absent fraud or misrepresentation, establishes that the holder is returning from a temporary visit abroad. However, a reentry permit does not guarantee readmission to the United States.

For Canadian clients: be wary of using province’s medical service plan (i.e. BC Medical). Provinces can and do sue for reimbursement of costs incurred by LPRs also claiming to be residents of the province. US will also try and present the use of such plans as evidence of abandonment.

Expedited Removal INA §235(b)(C); 8 USC § 1225(b)(2)(C); 8 CFR 235.3 May apply to persons determined to be inadmissible at the border by reason of material

misrepresentation (212(a)(6)(c)) or not being in possession of a valid immigrant/non-immigrant visa (212(a)(7)). Does not apply to LPRs, refugees, asylees, USCs. Does apply to Canadians! (the argument

that it doesn’t is that Canadians are visa-exempt in most categories, so ERs under 212(a)(7)(ii) should not apply).

Originally applied to those arriving at the border; in 2004, DHS expanded to include those persons present in US without having been admitted/paroled, who were found within 100 miles of the southern border and were unable to establish having been physically present for the preceding 14 days. In 2006, expanded to within 100 miles of northern border. New EO implements a never-before-used expedited removal provision that will apply to

anyone who has not been admitted/paroled into the U.S. and who is unable to establish having been physically present for the preceding 2 years. No limits imposed in terms of distance from the border.

Pre-clearance airports (which include most of Canada’s international airports) cannot place an individual into expedited removal. Keep an eye on this as our preclearance agreement with Canada develops

Expedited Removal CBPO essentially becomes the judge, jury, and executioner.

No administrative review unless person claims to have status as LPR, refugee, asylee, or USC If applicant expresses intent to apply for asylum/expresses fear of persecution, then they must be given a CFI For those applying for asylum at land border (in ER context and otherwise), see Executive Order: Border Security and

Immigration Enforcement Improvements > indicates they will send the applicant back to Canada/Mexico pending a formal removal proceeding... With current backlogs, let alone the backlogs that will result from these EOs, that could mean years and years.

Extremely limited judicial review; extremely limited habeas review Due process applies to those who are already within the United States, admitted or not. See Zadvydas v. Davis, 533 U.S.

678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“[T]he Due Process Clause applies to all ‘persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); see also Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).

See United States of America v. Rufino Peralta-Sanchez, No. 14-50393, 2017 WL 510454 (9th Cir. Feb. 7, 2017).

Ask client for all the paperwork I-867a/b Sworn Statement (Q&A) I-860 Notice of Expedited Removal Copy of passport notations

How to appeal Possible to withdraw application for admission at any time - even after issuance of expedited removal order. Informal: Officer who entered the order has the power to reverse – rarely happens, but possible. Brief the issues

before asking. Informal: Ask POE Director to review. Brief the issues before asking. I-212 waivers still available.

I-94s Automated processing at airports vs. land border crossings

Travelers entering at air and sea POEs no longer receive paper I-94s; I-94 is issued electronically and automatically. CBP will issue an electronic I-94 at land POEs, and will still issue a paper form I-94 at land POEs when requested.

Global Entry kiosk print-out is NOT an I-94. But it does reflect status as it appears within the NEXUS/Global Entry records.

Be wary of I-94 inconsistencies causing overstays for Canadian visitors. 8 CFR §214.2(b)(2) states that any B-2 visitor who is found otherwise admissible

and is issued a Form I-94 will be admitted for a minimum period of six months. But reports of CBP “revalidating” previous I-94s rather than creating new I-94s, causing unintentional overstays for Canadians who travel frequently to/from the U.S. Check that electronic I-94 record! See AILA Doc. No. 16123072.

Deferred inspection Corrections to an I-94 can often be done through deferred inspection; and

depending on the deferred inspection location, it may be possible to correct via email. See AILA Doc. No. 16082209.

NEXUS and I-94s I-94 issues when using NEXUS

Update NEXUS records upon any change in status.

Don’t utilize NEXUS when trying to update your I-94

“Since the document is issued by the government of the United States, an I-94 will not be generated. If a person with a NEXUS card wishes to have an I-94 it is incumbent upon him to present himself to an inspector at the time of admission and make the request.”

More NEXUS Issues Be wary of adjusting status if entry via NEXUS.

Individuals have lost NEXUS privileges in such cases, having been found to have abused their NEXUS privileges

No lemons! NEXUS is a zero tolerance program. Includes

immigration, criminal, and customs violations. This includes fruit! Beware of rolling fruit.

No commercial goods – this has even included business cards.

NEXUS reinstatement DHS TRIP may work to cure NEXUS revocations

based on a wrongful finding of inadmissibility

Port Parole

Discretionary authority granted to CBP under INA §212(d)(5) to parole in an inadmissible applicant who presents a compelling reason for needing entry to the US.

Filed at directly at the POE, not in advance through USCIS. However, attorney should give advanced notice to the POE supervisor prior to applicant submitting.

Port parole is similar, but not the same, as humanitarian parole through USCIS.

Note DT’s signed Executive Order, “Executive Order: Border Security and Immigration Enforcement Improvements,” Section 11(d), reads as follows:

“The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

Marijuana Marijuana

Over half our states have laws legalizing marijuana in some form. Eight states (WA, OR, CA, NV, CO, AK, ME, MA) and the District of Columbia have voted to legalize marijuana for recreational use.

Canada is expected to legalize marijuana later this year. With travelers’ social media pages under scrutiny, be wary of marijuana-

related postings. Noncitizens remain governed by federal law on this issue. Be on guard for questions at the border about marijuana usage. Prior to legalization of pot in border states (WA, CA, AK, ME, CBPOs would

refer small marijuana cases that the federal government wouldn’t bother to prosecute, to state and local law enforcement for prosecution. With legalization in those border states removing that option, CBPOs are now turning to imposing customs fines in order to impose some form of punishment. A customs fine for a small amount of marijuana is not a basis for inadmissibility!

DUIs DUI alone is not generally a basis for inadmissibility. But see: new removal “priorities”. As of Nov 5, 2015 the visa office instructed consular officers to revoke visas of anyone

arrested for an alcohol-related offense within the past 5 years, or 2 arrests within the past 10 years. Their reasoning as to not basing it on a conviction: this is not based on a criminal ground

of visa ineligibility, but a public health/safety ground. The information is passed along from local law enforcement through interagency

channels, eventually making it to DOS and the issuing post. The issuing post then contacts the visa holder by letter, regardless of where that person is located in the world, and notifies them that their visa has been revoked.

Reminder: revocation of a visa does not equate to revocation of status. In the context of Canadians travelers without visas, they would be directed to apply for

a visa relevant to their status, where that would otherwise not be required. To date we understand CBP has not been instructed to turn away otherwise admissible

persons because of a DUI conviction, but this is an issue to keep your eye on.

General Border Tips and Tricks

Mondays and Fridays generally busiest days – maybe not best to send complicated/sensitive issues on those days.

Client should travel during regular business hours, and use the larger border crossings. × Avoid travel during odd hours, and smaller border crossings; where less experienced and therefore more conservative officers will be working.

Consider utilizing a preclearance airport if client profile raises admissibility concerns – at present, non-citizen travelers cannot be put into Expedited Removal or detained beyond secondary questioning at preclearance.

Consider having client carry executed G-28.

Client should keep discussion with CBP officer to a minimum (answer “yes/no”, or as briefly as possible... not the time to chat.)× When seeking B-1 entry, client should never use the word “work” when they mean “business.”× When seeking B-1/B-2 entry, client should not tell the officer they are seeking B-1/B-2 entry; or even worse, that they qualify for B-1/B-2 status. They

should just tell the officer what they plan to do.× Client should avoid discussion of any U.S. citizen significant others... but must be truthful if asked.

× Reminder: Social media and emails may be scrutinized for evidence of non-immigrant intent. Even if they aren’t searching your device, CBP knows how to Google! They routinely search public professional and social media profiles, company websites, craigslist ads, etc.!

Client should consider keeping a folder of “B-1/B-2” documents available evidencing their ties to home country, and the temporary nature of their travel to the U.S. Suggestions of such documents can be found at the end of the following articles at: http://americanlaw.com/b-1.html, http://americanlaw.com/b-2.html.

If the client feels they are being “interrogated” at the border, or things just seem wrong, they can ask to withdraw their application for admission to the U.S. (this is usually less work for CBP than making a formal finding of inadmissibility). Then, call an immigration attorney!

Client should be reminded: unsure if something is permitted in B-1/B-2 status? Call an immigration attorney first!A 1-hour consultation is far less costly than a possible bar from entering the U.S.

Client should be reminded: no matter what, do not make any material misrepresentations in the entry process! The penalty can be a lifetime bar from the U.S.